A contractor’s challenge to a contracting officer’s final decision was “improperly directed” when it was sent only to the contracting officer, and did not delay the 90-day period in which the final decision could be appealed to the Civilian Board of Contracting Appeals.

As demonstrated in a recent CBCA decision, when a contractor receives a contracting officer’s final decision, the appeals clock starts ticking–and an “appeal” to the contracting officer doesn’t stop the clock.

The CBCA’s decision in Bob L. Walker, CBCA 4735 (2015) involved a timber sale contract between Bob L. Walker and the Forest Service.  The contract called for Mr. Walker to cut timber in the Darby Ranger District of Montana’s Bitterroot National Forest.

After award, the parties found themselves in disagreement over the requirements for acceptable winter logging conditions.  Mr. Walker made several requests for weather-related contract adjustments and extensions.  Although the Forest Service granted some of these requests, it ultimately denied further requests for extensions.  The Forest Service then terminated the contract for default.

In a contracting officer’s final decision dated February 20, 2014, the Forest Service assessed Mr. Walker damages associated with the termination of the contract.  The final decision letter notified Mr. Walker that these amounts would be deducted from his performance bond for the contract.  The letter informed Mr. Walker that any appeal to the CBCA must be filed “within 90 days from the date you receive this decision.”

On May 9, 2014, Mr. Walker sent a letter to the Contracting Officer challenging the termination.  In his letter, Mr. Walker also claimed costs arising from the termination.  Mr. Walker did not send this letter to the CBCA.  On July 10, 2014, the contracting officer responded by stating that she viewed the May 9 letter as an appeal of the February 20 decision.  She informed Mr. Walker that she would not issue a new final decision, and referred him to the portion of the February 20 letter regarding Mr. Walker’s appeal rights.

Mr. Walker sent a similar letter to the contracting officer on February 12, 2015.  The contracting officer issued a reply on March 13, 2015.  Again, the contracting officer declined to issue a new final decision, stating that Mr. Walker’s letter appeared to be an appeal of the termination.  The contracting officer again referred Mr. Walker to the portion of the original letter describing Mr. Walker’s appeal rights.

On May 4, 2015, Mr. Walker filed a notice of appeal with the CBCA.  The Forest Service subsequently moved to dismiss Mr. Walker’s appeal as untimely because it had been filed more than 90 days after Mr. Walker’s receipt of the contracting officer’s final decision.

The CBCA noted that the contracting officer’s final decision was issued on February 20, 2014 and delivered to Mr. Walker on February 21, 2014.  “Accordingly, Mr. Walker’s appeal had to be filed with the Board within 90 days of his receipt, i.e., May 22, 2014.”  The CBCA continued:

Mr. Walker appealed the Forest Service’s final decision to the agency itself on May 9, 2014 and February 12, 2015, respectively.  However, those appeals were improperly directed to the Forest Service.  On each of these occasions, the Forest Service’s response referenced paragraph 5 of its February 20, 2014 letter, which advised Mr. Walker that an appeal should be made to the Board.  Moreover, although Mr. Walker described each of these submissions to the agency as claims and included monetary claims, both were challenges to the final decision terminating his contract.  Mr. Walker’s claim submissions to the agency cannot be considered by the Board unless and until the underlying termination for default is overturned.

The CBCA concluded that “Mr. Walker’s failure to appeal within the required statutory period renders his filing untimely and leaves the Board without jurisdiction to hear the case on the merits.”  The CBCA dismissed the appeal for lack of jurisdiction.

When a contractor receives a contracting officer’s final decision, it can be tempting to attempt to convince the contracting officer to change his or her mind, rather than filing an appeal at the appropriate Board of Contract Appeals (or the Court of Federal Claims).  But while there is nothing improper or wrong about attempting to discuss the final decision with the contracting officer, such discussions–including “appeals” like the one filed by Mr. Walker–do not stop the formal appeals clock from ticking.